12 September 2023
Honourable Chairperson,
Members of the Executive,
Members of Parliament,
Members of the media,
Fellow South Africans,
When the office of an Ombud or Public Protector in the new constitutional dispensation was first proposed in this country, the African National Congress, in its policy document entitled ‘Ready to Govern: Policy Guidelines on a Democratic South Africa’, said:
‘The ANC proposes that a full-time independent office of the Ombud should be created with wide powers to investigate complaints against members of the public service and other holders of public office and to investigate allegations of corruption, abuse of their powers, rudeness and maladministration. The Ombud shall have the power to provide adequate remedies. He or she shall be appointed by and answerable to Parliament.’
Former President Nelson Mandela explained the thinking behind the creation of the Public Protector to the Africa Regional Workshop of the International Ombudsman Institution in 1996, as follows:
“We were mindful from the very start of the importance of accountability to democracy. Our experience had made us acutely aware of the possible dangers of a government that is neither transparent nor accountable. To this end our Constitution contains several mechanisms to ensure that government will not be part of the problem; but part of the solution.
The importance of the office of the Public Protector cannot be stressed enough. When we adopted our final Constitution, we understood that it was a strategically important step to move towards the kind of South Africa we all knew we wanted.
In 2016, the Constitutional Court described the Public Protector as one of the most invaluable constitutional gifts to our nation in the fight against corruption, unlawful enrichment, prejudice and impropriety in State affairs and for the betterment of good governance. Embarking on the s194 process, which we undertook, was important for the preservation of this important state institution which supports our constitutional democracy.
Chairperson,
The Independent Panel’s function was to conduct and finalise a preliminary assessment of the Motion to determine whether there was prima facie evidence showing that Adv Mkhwebane had indeed committed misconduct and/or was incompetent as alleged. The Independent Panel made its own findings and submitted its report. Not all the charges were sustained. The Independent Panel indeed found prima facie evidence of misconduct and incompetence and recommended that the National Assembly should establish the Committee. Our task as the Committee was to establish the veracity of the specific charges of misconduct and incompetence laid against the Public Protector. We bore the duty to interrogate the evidence and apply our minds, in line with our constitutional duty of oversight – and not to merely rubber-stamp the report. The committee was not a court of law but a body comprising of elected representatives who had to discharge a function uniquely and constitutionally allocated to a committee of the National Assembly.
From inception, the position of the ANC was to consider the facts and evidence placed before the committee and apply its mind. We approached the work with an open and enquiring mind. We had no predetermined outcomes. We heeded to the caution made by the Chairperson that we should stay focused, pursue the facts and evidence, adhere to procedural fairness, uphold the rule of natural justice – audi alteram partem and stand on rationality. This would help members avoid being trapped in the two extremes that were out there: The one extreme being that the Public Protector was not fit to hold office and the other extreme being that the Public Protector was fit to hold office and therefore there was no need for this enquiry.
The ANC was consistently present in every meeting. We engaged with the evidence, posed questions to the witnesses and most importantly, engaged the Public Protector’s sworn statement and posed written questions to her. Fairness was demonstrated at all material times. Adv Mkhwebane was given the opportunity to present her sworn statement and cross examined all witnesses. The revised procedure allowed her an election to answer questions from members and evidence leaders in writing or orally. She was also provided an opportunity to make an oral or written closing argument. We are satisfied that a legally sound process was followed.
Chairperson,
We experienced many challenges – understandably – this was a novel process after all. Many things could have derailed our work but we kept our focus. We understood that section 237 of the Constitution charges us to perform our constitutional obligations without delay.
In respect of the allegations proffered against Adv Mkhwebane and having considered the evidence, we share the committee’s view that Adv Mkhwebane misconducted herself and displayed incompetence. Adv Mkhwebane has also repeatedly neglected the duties that a constitutional office-bearer, an officer of the court and an organ of state bears. The inadequacies of the Vrede investigation, and the excesses of the Lifeboat investigation – both of which caused serious harm, are such that they would have destroyed a reasonable member of the public’s confidence in her ability to discharge her duties and functions.
Ms Caroline Zulu-Sokoni, gave evidence based on her role as the Public Protector of the Republic of Zambia and said:
“The Ombudsman is the only institution which the poor can call upon. We should not allow those poor people to lose heart and lose faith in the institution that has been set up for them.”
The ANC supports.
Footnote
Ready to Govern, 1992, https://www.anc1912.org.za/policy-documents-1992-ready-to-govern-anc-pol….
SABC v DA (393/2015) [2015] ZASCA 156 (8 October 2015).
Economic Freedom Fighters v Speaker of the National Assembly and Others; Democratic Alliance v Speaker of the National Assembly and Others (CCT 143/15; CCT 171/15) [2016] ZACC 11; 2016 (5) BCLR 618 (CC); 2016 (3) SA 580 (CC) (31 March 2016)
Committee Meeting, 20 July 2021.
Committee Meeting, 20 July 2021.